Atlas Biologicals, Inc. v. Kutrubes et al

Filing 57

PROTECTIVE ORDER by Magistrate Judge Kathleen M. Tafoya on 7/7/15. (sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:15-cv-00355 CMA-KMT

ATLAS BIOLOGICALS, INC., a Colorado
corporation,

Plaintiff,

v.

THOMAS JAMES KUTRUBES, an
individual; PEAK SERUM, INC., a
Colorado corporation; and PEAK
SERUM, LLC, a dissolved Colorado
limited liability company,

Defendants.

STIPULATED PROTECTIVE ORDER

Discovery in this case will involve the production of information that the producing
parties or persons claim to be confidential, proprietary, commercially sensitive, and/or a
trade secret. Under Rule 26(c) of the Federal Rules of Civil Procedure, the parties
stipulate to this protective order for the purposes of governing the handling of such
information in this case, to expedite discovery and disclosure of such information without
frequently resorting to determinations of discoverability by the court and to protect that
information from improper or premature disclosure:
1.0

DEFINITIONS. As used this Stipulated Protective Order the following terms shall

have the following meanings:

1.1.

“Confidential”: A party may designate as “Confidential” those materials
which that party in good faith believes constitutes or contains confidential,
proprietary, commercially sensitive and/or trade secret information, which
information is not generally known and which that party would normally not
reveal to third parties or, if disclosed, would require such third parties to
maintain in confidence.

1.2.

“Highly Confidential – Outside Counsel Eyes Only”: A party may
designate as “Highly Confidential – Outside Counsel Eyes Only” any
confidential,

proprietary, commercially

sensitive and/or trade

secret

information which that party in good faith believes is so highly sensitive that
the protections afforded to Confidential information are not sufficient. This
designation shall be reserved for information that constitutes, reflects, or
concerns particularly sensitive proprietary, technical, financial, marketing,
or other business information, trade secrets or know-how.
1.3.

“Counsel”: “Counsel” means the following named outside trial counsel
(e.g. not in-house counsel, prosecution counsel, or transactional counsel)
and any other outside trial counsel (e.g. not in-house counsel, prosecution
counsel, or transactional counsel) who enter an appearance on behalf of
Plaintiff or Defendants in this action: the lawyers of Wick & Trautwein, LLC,
counsel for Defendants Thomas James Kutrubes, Peak Serum, Inc., and
Peak Serum, LLC and Lind Ottenhoff & Root, LLP, counsel for Plaintiff,
Atlas Biologicals, Inc.

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1.4.

“Plaintiff” or “Atlas” means Atlas Biologicals, Inc. and its current and
former shareholders, employees, contractors, officers, directors, or agents.

1.5.

“Defendant”, “Defendants”, “Kutrubes” or “Peak Serum” means Peak
Serum, Inc., a Colorado corporation, Peak Serum, LLC, a dissolved
Colorado limited liability company, and Thomas James Kutrubes, an
individual and their current and former shareholders, employees,
contractors, officers, directors, or agents.

1.6.

“Parties” For the purpose of this Protective Order, the term “Parties” means
Plaintiff and Defendants, and “Party” means Plaintiff or Defendants (and
each Defendant), as the case may be.

1.7.

“Person” The term “Person” includes natural persons, as well as
partnerships, limited partnerships, limited liability partnerships, companies,
limited liability companies, associations, league, corporations, governments
(including all instrumentalities, offices, agents, subdivisions, thereof), trusts
funds, and all other business legal or artificial entities and business
associations, and their current or former shareholders, members, partners,
executives, employees, and agents.

2.1.

DESIGNATION OF PROTECTED MATERIAL

2.2.

Designation of Confidential Information. Each page of any document or
transcript of oral testimony produced or given in this action that is asserted
by the producing party or stipulating third party to contain or constitute
Confidential information shall be so designated in writing by such producing

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party or stipulating third party. Each such document or transcript of
testimony shall be clearly and prominently marked on its face with the
legend “CONFIDENTIAL”. If necessary to avoid confusion, a letter or
letters identifying the producing party or stipulating third party or other
comparable notice shall be included on the document or transcript of
testimony. If the receiving party wishes to show non-confidential portions of
a document or transcript containing Confidential information to a person or
party not described below in paragraph 4.2, it shall first redact all pages (or
portions of pages) marked as containing Confidential information.
2.3.

Designation of Highly Confidential – Outside Counsel Eyes Only
Information. Each page of any document or transcript of oral testimony
produced or given in this action that is asserted by the producing party or
Stipulating Third Party to contain or constitute Highly Confidential – Outside
Counsel Eyes Only information shall be so designated by such producing
party or stipulating third party. Each such document or transcript of
testimony shall be clearly and prominently marked on its face with the
legend “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL EYES ONLY”
preceded by a letter or letters identifying the producing party or stipulating
third party or other comparable notice. If the receiving party wishes to show
non-highly confidential portions of a document or transcript containing
Highly Confidential – Outside Counsel Eyes Only information to a person or
party not described below in paragraph 4.3, it shall first redact all pages (or

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portions of pages) marked as containing Highly Confidential– Outside
Counsel Eyes Only information.
3.1.

ACCESS TO PROTECTED MATERIAL.

3.2.

General. A record shall be made of the names of the persons to whom
disclosure of protected material is made (other than to Counsel and outside
contractors hired by Counsel to copy, index, sort, or otherwise manage the
storage and retrieval of discovery).

3.3.

Access to Confidential Information. In the absence of written permission
from the producing party or stipulating third party or an order of the Court,
a receiving party shall use any Confidential information designated in
accordance with the provisions of paragraph 3.1 solely for purposes of this
action, including appeals between the Parties, and shall not disclose such
information to or discuss such information with any person other than: (a)
Counsel as defined in paragraph 2.3; (b) any employee or representative of
a party who has executed the Acknowledgement and Confidentiality
Agreement attached as Appendix A; (c) court reporters or videographers;
(d) any person who can be shown from the face of the document to have
authored or received it or who is accused by the producing party of having
accessed, transferred, or misappropriated it; (e) experts who have executed
the Acknowledgment and Confidentiality Agreement attached as Appendix
A; (f) the Court and its support personnel; (g) any mediator retained by the
parties to mediate this case; (h) members of the jury; (i) other persons

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agreed to in writing between Counsel for the Parties, provided such other
persons

have

executed

the

Acknowledgment

and

Confidentiality

Agreement attached as Appendix A; or (j) as may be determined by the
Court on the motion of any party upon a showing of good cause.
Acknowledgments and Confidentiality Agreements shall be provided to all
Counsel prior to any expert or other persons receiving protected material
under this Protective Order. Under no circumstances shall Confidential
information be made available to the receiving party or any other director,
officer, manager, employee, agent, or representative of the receiving party
except as stated in this paragraph. Nothing contained in this Protective
Order shall affect the right of the producing party or stipulating third party to
disclose to anyone Confidential information that it has designated.
3.4.

Access to Highly Confidential – Outside Counsel Eyes Only
Information. In the absence of written permission from the producing party
or stipulating third party or an order of the Court, a receiving party shall use
any Highly Confidential – Outside Counsel Eyes Only information
designated in accordance with the provisions of paragraph 2.2 solely for
purposes of this action, including appeals between the Parties, and shall
not disclose such information to or discuss such information with any person
other than: (a) Counsel as defined in paragraph 2.3; (b) court reporters or
videographers; (c) any person who can be shown from the face of the
document to have authored or received it or who is accused by the

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producing party of having accessed, transferred, or misappropriated it; (d)
experts who have executed the Acknowledgment and Confidentiality
Agreement attached as Appendix A; (e) the Court and its support personnel;
(f) any mediator retained by the parties to mediate this case; (g) members
of the jury; and (h) any other persons agreed to in writing between Counsel
for the Parties or as determined by the Court, providing such other persons
have executed the Acknowledgment and Confidentiality Agreement
attached as Appendix A. Acknowledgment and Confidentiality Agreements
shall be provided to all Counsel prior to any expert or other persons
receiving Protected Material under this Protective Order. Under no
circumstances shall Highly Confidential – Outside Counsel Eyes Only
information be made available to the Receiving Party or any other director,
officer, manager, employee, agent, or representative of the receiving party
except as stated in this paragraph. Nothing contained in this Protective
Order shall affect the right of the producing party or stipulating third party to
disclose to anyone Highly Confidential – Outside Counsel Eyes Only
information that it has designated.
4.1.

HANDLING OF PROTECTED MATERIAL.

All material designated as

Confidential or Highly Confidential –Outside Counsel Eyes Only shall be handled by the
receiving party in the same manner as it would handle its own information which is
confidential and proprietary. Notwithstanding the foregoing, materials Confidential or

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Highly Confidential –Outside Counsel Eyes Only shall be handled in at least a reasonable
and prudent manner for the protection of similar confidential or proprietary information.
4.2.

Designation of Transcript. Transcripts shall be treated by the Parties as
Confidential until 30 days after the producing party’s or stipulating third
party’s receipt of the transcript from the court reporter. During the 30 day
period, the producing party or stipulating third party may give written notice
to the receiving party that the transcript contains protected material and is
designated under paragraph(s) 3.1 and/or 3.2. Absent such designation, the
transcript shall not be subject to this Protective Order after expiration of the
30 day period.

4.3.

Request

for

Production

in

Unrelated

Legal

Proceedings,

Administrative Tribunals, or Investigations. In the event any receiving
party having possession, custody or control of any protected material
receives from or on behalf of a non-party a subpoena or other process or
order to produce such information in another unrelated legal proceeding,
tribunal, or investigation, such receiving party shall: (a) notify Counsel for
the producing party or the stipulating third party; (b) furnish Counsel or the
stipulating third party with a copy of said subpoena or other process or
order; and (c) cooperate with respect to all reasonable procedures sought
to be pursued by the producing party or stipulating third party whose
interests may be affected. The producing party or stipulating third party
asserting the Confidential designation shall have the burden of defending

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against such subpoena, process, or order. The receiving party receiving the
subpoena or other process or order shall be entitled to comply with it except
to the extent the producing party or stipulating third party asserting the
Confidential treatment is successful in obtaining an order modifying or
quashing the subpoena or other process or order.
5.0. DESIGNATION NOT DETERMINATIVE OF STATUS. A party may object to the
designation of particular Confidential or Highly Confidential –Outside Counsel Eyes Only
information by giving written notice to the party designating the disputed information. The
written notice shall identify the information to which the objection is made. If the parties
cannot resolve the objection within ten (10) business days after the time the notice is
received, it shall be the obligation of the party designating the information as Confidential
or Highly Confidential – Outside Counsel Eyes Only to file an appropriate motion
requesting that the Court determine whether the disputed information should be subject
to the terms of this Protective Order. If such a motion is timely filed, the disputed
information shall be treated as Confidential or Highly Confidential – Outside Counsel Eyes
Only under the terms of this Protective Order until the Court rules on the motion. If the
designating party fails to file such a motion within the prescribed time, the disputed
information shall lose its designation as Confidential or Highly Confidential – Outside
Counsel Eyes Only and shall not thereafter be treated as Confidential or Highly
Confidential – Outside Counsel Eyes Only in accordance with this Protective Order. In
connection with a motion filed under this provision, the party designating the information
as Confidential or Highly Confidential – Outside Counsel Eyes Only shall bear the burden

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of establishing that good cause exists for the disputed information to be treated as
Confidential or Highly Confidential – Outside Counsel Eyes Only.
6.0. FINAL DISPOSITION. Within two months after final termination of this
action, or within one month after the time for appeal has expired, each Party shall
assemble all protected material furnished and designated by any other Party or stipulating
third party including protected material provided to experts, and shall either (i) return such
protected material to the producing party or stipulating third party; or (ii) destroy the
Protected Material and provide a certificate of destruction to the producing Party or
Stipulating Third Party. Counsel for each party shall be entitled to retain all pleadings,
motion papers, legal memoranda, correspondence and work product.
7.0. TERMINATION AND SURVIVAL OF OBLIGATIONS. No restriction
imposed by this Protective Order may be terminated, except by order of this Court for
good cause shown. The termination of this action shall not automatically terminate the
obligations specified in this Protective Order.
SO ORDERED:

Dated this 7th day of July, 2015.

Kathleen M. Tafoya
United States Magistrate Judge

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Approved as to form:

/s/
John
D. Root
355 Eastman Park Drive, Suite 200
Windsor, CO 80550
[phone]

/s/
Kevin William Ward
323 S. College Avenue #3
Fort Collins, CO
[phone]

Attorney for Plaintiff

Attorney for Defendant

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APPENDIX A
ACKNOWLEDGEMENT AND CONFIDENTIALITY AGREEMENT

I,

, hereby acknowledge that:

1.
I have read the Protective Order entered in the action presently pending in
the U.S.
District Court for the District of Colorado captioned Atlas Biologicals, Inc. v. Kutrubes, et
al., No. 1:15-cv-355-CMA-KMT;

2.

I understand the terms of the Protective Order;

3.
I agree, upon threat of penalty of contempt and other civil remedies, to be
bound by the Protective Order’s terms; and

4.
I irrevocably submit my person to the jurisdiction of the U.S. District Court
for the District of Colorado for the limited purpose of securing compliance with the terms
and conditions of the Protective Order.

DATED:

Signature

Name

Present Employer

Title/Occupation

Address

City State ZIP

Telephone Number

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